Last month, in Cowpasture River Preservation Association v. Forest Service a panel of the 4th Circuit rejected the U.S. Forest Service approval of a pipeline development that would have crossed 21 miles of national forest land, and the Appalachian National Scenic Trial.In scolding the Forest Service for not adequately protecting the trees, the court cited Dr. Seuss’ classic The Lorax, saying, “We trust the United States Forest Service to ‘speak for the trees,’ for the trees have no tongues.”More on the case in a moment, but I find that quote to be particularly heartwarming.

Some years ago, when I left the tree lined streets of Ditmas Park, Brooklyn for the state capital, to join the New York State Department of Environmental Conservation, my boss presented me with a welcoming gift, though it was actually for my young son. The book was The Lorax with an inscription that read “Dear Elliott, ask your mommy to read this book to you and you will learn why she goes to work every day.” The Lorax like Rachel Carson’s Silent Spring, reminds us that our birds, trees and natural resources, air, water had no one to speak for them, and needed to rely on us to protect them.

Dr. Seuss’s book resonated with me in a huge way, since my house abutted the Albany Pine Bush, the home of the Karner blue butterfly, an endangered species. I had left one “Park” area for an area even more verdant. The Pine Bush is one of the best remaining examples of an inland pine barrens ecosystem in the world.It has come to be seen as a historical, cultural, and environmental asset to the Capital District and Hudson Valley regions of New York. Yet, despite a valiant fight by a local conservation group, the City of Albany allowed the rezoning enabling the Crossgate mall development adjoining the butterfly habitat.

I had chosen to decamp to Guilderland, a town west of Albany, when the feelings about the then newly built Crossgates mall were still raw. My tree protectionist stance made it impossible for me to ever shop at what is now the 3rd largest mall in NY State. In gifting me The Lorax, my boss helped a young boy understand what his mom did, why she loved what she did, and made it impossible for me not to connect with the trees in the Pine Bush nearby.I have always loved the fact that Dr. Seuss’ book had given the trees a mouthpiece, the Lorax. Like Aaron speaking for Moses, the Lorax spoke for the trees. “I am the Lorax, I speak for the trees.”

So imagine my validation reading Cowpasture when a three judge panel of the 4th Fourth Circuit blocked the Atlantic Coast Pipeline from a critical crossing of the Appalachian National Scenic Trail through the Blue Ridge Mountains near Wintergreen Resort.The Federal Energy Regulatory Commission had approved the pipeline route for which the Forest Service issued a Special Use Permit. In rejecting the U.S. Forest Service authorization for the $7 billion Atlantic Coast gas pipeline to cross national forests, the court said the agency's violations of federal environmental and forest management laws would disappoint even theLorax, and further found that the National Forest Service had abdicated its responsibility in not speaking for the trees.The court went further saying that “it is nothing short of remarkable that the Forest Service — the federal agency tasked with maintaining and preserving the nation’s forest land — takes the position that . . . a project specific amendment, no matter how large, will rarely, if ever, cause a substantial adverse effect on a national forest.” The panel went on to say that “ . .[i]t is even more remarkable that the agency is unable to say what would constitute a substantial adverse effect on the forest.”

The pipeline would have stretched 605 miles through three states from West Virginia to North Carolina.The ruling also found that the Forest Service had acted arbitrarily and capriciously by changing its forest management plans to accommodate the project and by not fully considering alternative routes that would reduce the pipeline’s damage to national forest land, and violated NEPA by “failing to take a hard look at the environmental consequences” to the national forests it would cross.

This decision demonstrates that agencies cannot simply ignore environmental concerns that were previously raised simply because there is a new federal administration that is more supportive of a development than the previous one.The court said that based on the sequence of events, the decision to grant the permit appeared to be “pre-ordained” rather than subject to a serious environmental review.So, at least the 4th Fourth circuit has acknowledged that theLoraxis still speaking for the trees.

The Ninth Circuit’s en banc opinion inKaruk Tribe of California v. United States Forest Service belongs on your summer reading list. It holds your attention on two levels. First, the majority broadly construes consultation requirements of the Endangered Species Act (“ESA”) in the context of mining in National Forests. Then, the dissent provides a memorable critique of “extreme environmental decisions” by the Ninth Circuit.

The case applies the ESA to regulation by the United States Forest Service of small-scale gold mining on the Klamath River in the Klamath National Forest in northern California. The river is critical habitat for endangered salmon, and the river’s bed also contains gold deposits that are mined by miners who hold rights under the General Mining Law of 1872. Mining methods include suction dredging of the river bed, and views differ about the effects of mining on the salmon. The Forest Service mining regulations at issue divide mining activities within National Forests into three categories: those that “will not”, “might,” and “will likely” cause significant disturbance of surface resources. For planned mining activities that either “might” or “will likely” cause such disturbance, the miner must file a notice of intent to operate (“NOI”). After reviewing the NOI, the District Ranger determines whether a plan of operations is also required. A plan of operations is more detailed than an NOI and is required only for mining that “will likely” cause significant surface resource disturbance. If the Forest Service determines that significant surface disturbance is not likely, the NOI satisfies the requirements of the regulations. But the ESA may impose additional requirements. It requires the Forest Service to consult with the Fish and Wildlife Service before taking discretionary “agency action” that “may affect” a species listed as threatened or endangered. Otherwise, consultation is not required.

The fundamental issue in Karuk Tribe is whether a Forest Service decision not to require a plan of operations was “agency action” requiring consultation under the ESA or mere agency inaction that does not require consultation. Several miners filed NOIs for proposed operations, and in response to the NOIs the District Ranger essentially imposed conditions but decided not to require plans of operations. The Ranger did not consult the United States Fish and Wildlife Service in reaching that decision. The Karuk Tribe sued the Forest Service and asserted consultation was required. The Forest Service defended its failure to consult by arguing that the NOI was a mere notice and its action on the NOI was only a decision not to regulate, rather than “agency action” under the ESA. The district court ruled in favor of the Forest Service. In 2011, a divided panel of the Ninth Circuit affirmed the district court’s holding that such consultation was not required because the District Ranger’s decision was not “agency action” under the ESA. But upon rehearing the case en banc, the court reversed its previous decision and found that the District Ranger’s decision rose to the level of “agency action” and triggered consultation requirements of the ESA. The court reasoned that the decision was agency action because when the Forest Service considered the NOIs, it affirmatively authorized mining to proceed and the mining may affect the salmon.

The dissenting opinion is essential reading for lawyers who have represented clients entangled in extensive environmental regulation. It ventures well beyond the issues presented by Karuk Tribe to criticize various Ninth Circuit environmental decisions as “extreme”. Featuring art and prose from Gulliver’s Travels, and invoking works of Dante and Aldous Huxley, the dissenting opinion urges that the court exercise judicial restraint in construing environmental laws. Finally, the dissent recounts specific examples of harm to employment, industry, and local government that it attributes to the court’s creation of “burdensome, entangling environmental regulation out of the vapors”. You might take this one to the beach as long as your destination is not the Island of Lilliput.

In the waning days of the Clinton administration, the U.S. Forest Service adopted a regulation to protect more than 50 million acres of national forest roadless lands, i.e., public lands still undeveloped and largely untouched. Called the Roadless Area Conservation Rule [36 C.F.R. § 294] or Roadless Rule (and sometimes called the RACR), it was soon off to the races with no fewer than nine lawsuits by development interests and western states seeking to invalidate it.

A district judge in Wyoming then invalidated the Roadless Rule and enjoined its implementation nationwide in a case filed by the State of Wyoming. An appeal by conservation interests to the Tenth Circuit, again with the Forest Service firmly on the sidelines, ensued. In 2005, before the appeal was resolved, the Forest Service itself repealed the Roadless Rule and replaced it with a state petition process, leading the Tenth Circuit to vacate the district court decision and dismiss the pending appeal as moot.

Conservation groups and the states of California, Oregon, Washington and New Mexico challenged the repeal. In 2006, a district court in California overturned the repeal and reinstated the Roadless Rule. The Ninth Circuit subsequently affirmed.

Last week, after the Tenth Circuit denied rehearing en banc, Wyoming petitioned the Supreme Court to review the Tenth Circuit’s decision. The decision is a unanimous, one hundred-plus page review of Wyoming’s claims under NEPA, the National Forest Management Act, and the Wilderness Act -- worth a read just as a primer on the current state of these laws. In the meantime, the Forest Service is now off the sideline and, along with conservation interests, expected to oppose Wyoming’s cert. petition. The Supreme Court should act on the petition by next Fall.

Unless you live in Hawaii, you’re probably no more than a few hours’ drive from the nearest national forest roadless area (yes, there are roadless areas in the White Mountains, Appalachians and Ozarks as well as the western states). Visit one and see what the controversy is all about. Or maybe you already know because you live in one of the hundreds of communities around the country that gets its drinking water from a nearby roadless area – so you enjoy these lands every time you turn on your tap. Any way you use and enjoy them, the more than 50 million acres of federal public land the Roadless Rule protects are still roadless after all these years.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.